We will take the Schedule in two parts. The question is: "That Part I. stand part of the Schedule."
DAIL IN COMMITTEE. - PUBLIC SAFETY (PUNISHMENT OF OFFENCES) TEMPORARY BILL, 1924. THIRD STAGE (RESUMED).
Question: "That Section 1 stand part of the Bill"—put and agreed to.
Sections 2 to 11, inclusive, put and agreed to.
SCHEDULE.
I just want to ask a question before we pass this Bill, which has been going through so rapidly. Some time ago I raised a question with the Minister for Defence concerning some prisoners, and his reply was that if these prisoners gave two solvent securities and signed an undertaking they could be released. In a supplementary question I asked the Minister for Defence whether in that case they would have forfeited their rights to the land, and I was told this was a question for the Minister for Home Affairs. Perhaps he would answer me now.
I am afraid the Minister for Home Affairs would be more out of order than the Deputy if he replied.
Well, in the silence preserved by the Minister I presume I can proceed.
I am afraid not. The Deputy cannot proceed at this stage. This is Part I. of the Schedule to the Bill, and there is nothing about prisoners or land or anything of that kind in it.
I was afraid you would rule me out of order, so I have said what I wanted to say already.
Before passing this part of the Schedule, I would like to raise again the question I raised on Section 1 regarding the inclusiveness of paragraph (2) of Part I., and to try and find out from the Minister whether he has been able to give any consideration since last night to that paragraph: "Unlawfully inducing or attempting to induce any officer of the Government of Saorstát Eireann to refuse, neglect or omit to discharge his duty as such officer." Part I. of the Schedule is obviously intended to constitute a major offence because the punishment which the Court is empowered to inflict for either of these offences is penal servitude for life, and in its present form it will depend entirely upon the discretion of the Minister and his Department, or the officers of his Department, as to whether an offender is to be prosecuted under this Act, or any other Act, and it leaves to his discretion, and to the discretion of the judge, whether the officer referred to in the Section is to be an officer of responsibility whose offence would be a very grave danger to the State, or a minor officer, whose offence would be of very little importance.
I think it is unwise of the legislature to make suggestions to a judge or to give a lead as to its opinions in this way, that an officer of State, no matter what his offence may be, no matter how high or low his status may be if he is an officer of State to unlawfully induce such officer to neglect to discharge his duties is a major offence. Certainly that would be the effect if this Section is passed in its present form. Unless we are able to define the officer and the kind of officer intended in this Schedule whose neglect of duty would inflict peril and danger upon the State; unless we can define such officer we are acting unwisely in passing this Schedule. It will not be contended, I think, that neglecting his duty on the part, as I said last night, of a Customs' official, postal servant, or doorkeeper of the Dáil or any other minor officer or that any attempt to induce such officer to neglect or to omit to discharge his duty is such an offence as would warrant prosecution under Section 1; and if we passed the Schedule in its present form we are leaving a discretion in the matter to the police authorities and to the judges. I think that when you are passing special emergency legislation and fixing certain penalties for certain offences it may be taken, and quite rightly taken, by the courts that the legislature desired to place these hitherto minor offences in the category of major offences, and consequently we ought to be very careful before passing this paragraph of this Schedule to define the class of officer of the Government whom we have in mind. I would ask the Minister if he has anything to say further to what he said last night before we take a vote on this.
Mr. O'HIGGINS
The Schedule to this Bill is divided into two parts, and it will be noticed that Part I. deals with a challenge to the State as such, and Part II. deals for the most part with offences as between citizen and citizen, a challenge to individual rights. That is one broad case of distinction as between the two portions of the Schedule. Keeping in mind the fact that Part I. of the Schedule is intended to cover the offence of a challenge to the fabric of the State, it is clear that paragraph II. of that portion of the Schedule will, in fact and in practice, apply only to an attempt to reduce the administration of the State to impotence by terrorising or suborning its officials. There are two means by which you can challenge and by which you may possibly overthrow a State. One is the open physical challenge all along the line, and the other is to sap and undermine, as it were, to reduce it to impotence by the terrorising or suborning of particular officials. There are certain cogs in the machinery, certain wheels which, if they can be kept a sufficiently long time from functioning, will bring about a general collapse. This form of challenge is not unknown to us. As I say, in certain areas attempts have been made to terrorise public officials from the performance of their duties, whether it be State Solicitors or Under-Sheriffs or District Justices.
But there would be a distinction, and it should be remembered that no criminal prosecution can be brought without the fiat of the Attorney-General, and each case would have to be taken simply on its merits. A particular incident might amount to no more than a common assault. An incident roughly similar might be held to constitute a sufficient case for a formal indictment on a criminal charge under this part of the Schedule to the Bill. It would depend upon the attendant circumstances. Much would depend upon the motive underlying the offence, and certainly this portion of the Schedule would not be used except the Government and the appropriate officer of the Government, the Attorney-General, was satisfied that the offence constituted a deliberate challenge to the State fabric and a deliberate attempt to reduce to impotence the machinery of that administration. It is for those reasons that I feel myself unable to agree to the suggestion that this portion of the Schedule should be confined to officers of the disciplined forces of the State, officers of the army or police forces. A very real and definite injury might be worked to the State by concentrating on other officials — civil officials — and endeavouring to prevent them from discharging their proper duties to the public.
I think what I have said ought sufficiently to meet the Deputy's point of view. No right can be interfered with by this portion of the Schedule, because the offence is "unlawfully inducing, or attempting to induce, any officer of the Government of Saorstát Eireann" and so on, and the fact that no criminal prosecution can be taken without the express fiat of the Attorney-General acting on behalf of the Government ought to be a sufficient guarantee that the Section would not be availed of to cover offences of a trivial or minor nature, or to cover offences which had no other underlying motive than a deliberate challenge to State administration.
The Minister has told us what he desires, and I can quite understand and appreciate it, but unfortunately the Schedule as it reads does not embody the Minister's desire, and equally unfortunately for his argument when the judges come to administer the law they do not read the Minister's speeches or weigh up his intentions. They are presumed to take the Act under which the prosecution is brought, and are presumed to act on the law as embodied in the Act of the Oireachtas. If the Bill passes in its present form, any Attorney-General who may be in office within the next twelve months may say that an offence which the Dáil would consider a minor offence is a major one. If so, and a prosecution was entered, the judge would be quite right in thinking that the intention of the legislature was to make any offence under Sub-Section 2 a major one punishable by the penalties in Section I. To embody the desires and intention of the Minister some connecting phrase of this kind would probably suffice. "In furtherance of an attempt to overthrow the established form of Government any attempt to unlawfully induce an officer" would come under this Schedule. If the intention of the Minister is only to make Sub-Section 2 to apply to an attempt at suborning or preventing an officer of the State from carrying on his duties in furtherance of any activities against the established form of Government, then let us say that. It is not beyond the powers of the draftsmen to embody such a statement in the Section, but as it stands it will appear that the intention of the legislature is to bring within this category of major offences any attempt on the part of any citizen unlawfully to induce any officer to neglect his duty. That is not the intention of the Minister, as he has explained, but it is the meaning of the Section whatever his intentions might be, and I would urge him to embody his meaning in the Section. He has explained it here quite clearly, and therefore he can explain it in the Section, and very few words would do it.
Ordered that progress be reported.